Judgment_paragraph 34 · Castelnou Energía, SL v European Commission (T-57/11)

34The applicant provided data in support of that claim. In both its reply and its observations on the statements in intervention in support of the Commission, it gave the percentages of electricity generated by combined-cycle power plants which were withdrawn from the daily market in June 2011 as a result of the implementation of the contested measure. In that connection, it should be noted first of all, as, indeed, the Commission has stated with reference to the data submitted by several interveners, that the data submitted after the contested decision was adopted and after the action was brought may be taken into account for the purpose of determining the admissibility of the present action. If the admissibility of an action is assessed when that action is brought, the specific condition for admissibility that the [applicant’s] competitive position be significantly affected by an aid measure yet to be implemented requires prospective assessment which may be made on the basis of facts which occurred after that date (see, to that effect, judgments of 21 October 2004 in Lenzing v Commission, T‑36/99, ECR, EU:T:2004:312, paragraph 87, and of 20 September 2007 in Fachvereinigung Mineralfaserindustrie v Commission, T‑375/03, EU:T:2007:293, paragraph 60). In the present case, since the contested measure was implemented in February 2011, the applicant cannot be criticised for having failed to provide such data in its application of 27 January 2011. It should also be noted that neither the Commission nor the Kingdom of Spain, which were informed of the percentages in question following the refusal of the request for confidential treatment thereof, sought to establish that the percentages were incorrect, even though they could have done so, since the applicant had specified that the percentages had been calculated on the basis of figures published by the system operator for the electricity market in Spain (Red Eléctrica de España, REE).